Citation Nr: 1234142
Decision Date: 09/28/12 Archive Date: 10/09/12
DOCKET NO. 06-25 266 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines
THE ISSUE
Entitlement to service connection for hypertension.
ATTORNEY FOR THE BOARD
A. Cryan, Counsel
INTRODUCTION
The Veteran served on active duty from October 1965 to September 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.
In a July 2008 decision, the Board denied the claim. The appellant appealed the decision denying the claim to the United States Court of Appeals for Veterans Claims. In a January 2010 Order, the Court remanded the claim to the Board for readjudication in accordance with a Joint Motion for Remand. In April 2010, the Board remanded the Veteran's claim for development consistent with the Joint Motion for Remand.
The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C.
REMAND
A review of the claims file reveals that the parties to the Joint Motion for Remand agreed that a remand is unfortunately again necessary before a decision on the merits of the claim can be reached.
The Veteran's claim was previously remanded in order to attempt to obtain additional service medical records and to afford the Veteran a VA examination with etiology opinion.
A remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been satisfied, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998).
With regard to the Veteran's service medical records, the RO was requested to contact the National Personnel Records Center (NPRC) in order to obtain additional service medical records from the United States Naval Training Center in San Diego, California dated from October 1965 to December 1965; records from the United States Naval Hospital in Guantanamo Bay, Cuba dated in October 1966 and January 1968; records from either the USS Lindenwald dated from January 1966 to November 1967 and the USS Robert L. Wilson dated from December 1967 to September 1968; records from the Medical Department of the "USNAS LC" in Norfolk, Virginia dated in August 1967 and at "USNAVPHIBASE LC" in Norfolk, Virginia dated in August 1967; and blood pressure readings taken at a recruitment center in Albuquerque, New Mexico dated in December 1969.
In April 2010, the RO contacted the NPRC and initiated a request for the Veteran's records from the Naval Training Center in San Diego, California for 1965; the United States Naval Hospital in Guantanamo Bay, Cuba for 1966; and the Medical Department "USNAS LC" in Norfolk, Virginia in 1967. The NPRC indicated that no records were located. However, the RO did not initiate a search for medical records from the United States Naval Hospital in Guantanamo Bay, Cuba for 1968; records from either the USS Lindenwald for January 1966 to November 1967 or the USS Robert L. Wilson from December 1967 to September 1968; records from the "USNAPHIBASE LC" in Norfolk, Virginia; or blood pressure readings taken at a recruitment center in Albuquerque, New Mexico in December 1969. The RO also failed to notify the Veteran of the results of the search for additional service medical records. In order to properly adjudicate the Veteran's claim, efforts to obtain the additional service medical records must be undertaken and the Veteran should be advised of the results of any searches for records.
At an August 2010 VA examination, the Veteran was diagnosed with hypertension. The examiner opined that it was at least as likely as not that the Veteran's current hypertension was related to active service. The rationale for that opinion was that the Veteran had borderline elevated blood pressure of 138/90 during enlistment physical examination that could have progressed into the current hypertension.
The Veteran's claims file was returned to the August 2010 VA examiner in order to obtain an opinion as to whether pre-existing hypertension was aggravated by active service. In a September 2010 addendum opinion, the August 2010 VA examiner indicated that because there were minimal service medical records available for review, the examiner was unable to determine whether or not the elevated blood pressure reading of 138/90 found prior to service was aggravated by service.
Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). To establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999).
A Veteran who served in the active military, naval, or air service after December 31, 1946, is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1132 (West 2002). Only those conditions recorded in examination reports can be considered as noted and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b) (2011). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion or a later medical opinion based upon statements made by the Veteran about the pre-service history of his condition. Miller v. West, 11 Vet. App. 345 (1998); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000).
To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002).
Hypertensive vascular disease (hypertension and isolated systolic hypertension) is rated under Diagnostic Code 7101. 38 C.F.R. § 4.104 (2011). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this 38 C.F.R. § 4.104, the term hypertension means that the diastolic blood pressure is predominantly 90, or greater, and systolic pressure is predominantly 160, or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Note 1 (2011).
In this case, the Veteran's service medical records show that his blood pressure was recorded as 138/90 at his enlistment examination in September 1965. The Veteran denied high or low blood pressure on a report of medical history form prepared in conjunction with his enlistment examination. No pre-service treatment records are associated with the claims file.
The Board finds that the Veteran's elevated blood pressure reading noted at his entry to service does not indicate that the Veteran was diagnosed with hypertension prior to service. For purposes of VA regulations, the term hypertension means that the diastolic blood pressure is predominantly 90, or greater, or systolic pressure is predominantly 160, or greater with a diastolic pressure of less than 90, and the readings must be confirmed on at least three or more days taken two or more times. 38 C.F.R. § 4.104, Note 1 (2011). In this case, the elevated reading was taken on one occasion on one day. Because hypertension was not diagnosed at the time of the Veteran's examination, acceptance, and enrollment into service, the Board finds that he is entitled to the presumption of soundness.
Although the Veteran is entitled to the presumption of soundness, it is still unclear whether the Veteran's hypertension was caused by his active service. The August 2010 examiner found that it was likely as not that hypertension was related to active service. The rationale for the opinion was that the Veteran had borderline elevated blood pressure during his enlistment physical examination that could have progressed into the current hypertension. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The August 2010 VA examiner failed to include a medical explanation for the conclusion. In order to properly adjudicate the Veteran's claim, another opinion should be obtained.
Associated with the claims file are VA outpatient treatment reports dated in August 2010. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain any additional VA records should be made. 38 C.F.R. § 3.159(c)(2) (2011); Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. Obtain any VA medical records pertaining to the Veteran which have not already been associated with the claims folder, to include those dates since August 2010.
2. Contact the National Personnel Records Center, or any other appropriate service department office and attempt to obtain additional service medical records pertaining to the Veteran from the United States Naval Hospital in Guantanamo Bay, Cuba for 1968; records from the USS Lindenwald for January 1966 to November 1967 and the USS Robert L. Wilson from December 1967 to September 1968; records from the "USNAPHIBASE LC" in Norfolk, Virginia; and blood pressure readings taken at a recruitment center in Albuquerque, New Mexico in December 1969. The results of the requests, whether successful or unsuccessful, should be documented in the claims file and the Veteran should be informed of any negative results.
3. Thereafter, submit the Veteran's claims file to a medical doctor with expertise in treating hypertension. The examiner must review the claims file and the report should note that review. The examiner should provide a rationale for all opinions. The examiner should provide an opinion as to whether it is at least likely as not (50 percent probability or greater) that the Veteran's current hypertension is related to the Veteran's active service, or manifested within one year following separation from service. In addition to the service medical records, the examiner should consider the Veteran's statements regarding symptoms of high blood pressure in service, including his contentions that his blood pressure was high on separation from service, and his statements of continuous symptoms of high blood pressure beginning in the 1980s. The examiner should also comment upon the blood pressure readings shown at the Veteran's separation from service. If the Veteran's hypertension is more likely attributable to factors unrelated to active service, the examiner should specifically so state. If the examiner determines that another examination is necessary in order to promulgate the opinion, the Veteran should be scheduled for another examination.
4. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow appropriate time for response, then return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).